📝 GmbH-Gesellschaftsvertrag – Die wichtigsten Regelungen

Summary

This video provides essential insights into the formation of a GmbH (limited liability company) in Germany, focusing on key topics for founders. It covers crucial elements of a shareholders' agreement, such as how business shares are handled in cases like divorce, death, or sale, and the importance of regulating share transfers. The video also addresses non-compete clauses, approval-required transactions, and shareholder rights, offering guidance on how to protect the company's interests. Legal expert Konstantin Eisenhauer highlights the complexities of these agreements to help founders navigate the challenges of starting and managing a GmbH.

Takeaways

• 😀 The Gesellschaftsvertrag (Articles of Association) is a crucial document for setting up a GmbH, as it defines the relationships and responsibilities between shareholders and the company.
• 😀 A Gesellschaftsvertrag must be notarized, ensuring legal clarity on shareholder rights, business structure, and operational terms.
• 😀 A key consideration in a Gesellschaftsvertrag is addressing marital status, particularly regarding the sale or transfer of shares when a shareholder is married, to avoid complications like spousal consent under §1365 BGB.
• 😀 A **güterstandsklausel** (marital regime clause) can be included in the Gesellschaftsvertrag to prevent the need for spousal approval when selling shares, safeguarding against potential delays in decisions.
• 😀 In case of divorce, business shares may be part of the **Zugewinnausgleich** (equalization of gains), which could force a shareholder to sell shares to satisfy financial obligations, affecting the company’s ownership structure.
• 😀 Shareholders should include provisions on how shares can be transferred, including preemption rights (Vorerwerbsrecht), giving existing shareholders the first opportunity to buy shares before they are sold to external parties.
• 😀 A **co-sale right** (Mitverkaufsrecht) ensures that remaining shareholders can sell their shares on the same terms as the selling shareholder if the entire company is offered for sale to an external buyer.
• 😀 A **mandatory sale clause** (Mitverkaufspflicht) can compel all shareholders to sell their shares if one shareholder decides to sell their entire stake to a third party, ensuring a smooth sale process.
• 😀 A non-compete clause can be included in the Gesellschaftsvertrag to prevent departing shareholders or executives from competing with the company, protecting its market position and intellectual property.
• 😀 The Gesellschaftsvertrag can specify **approval-required transactions** (zustimmungspflichtige Geschäfte), meaning that certain decisions, such as large purchases or new business ventures, need the approval of all shareholders before being executed.
• 😀 Provisions for the **buyback of shares** (Einziehung von Geschäftsanteilen) can be added to ensure the company can repurchase shares from departing shareholders, particularly in cases of insolvency, death, or violations of agreements, protecting the company from unwanted external influence.

Q & A

What is a GmbH and why is the corporate agreement important?

A GmbH (Gesellschaft mit beschränkter Haftung) is a type of limited liability company in Germany. The corporate agreement, also called the articles of association, is essential because it outlines the rights and obligations of the shareholders, the company's objectives, and its governance structure. It ensures clarity and helps prevent conflicts among shareholders.

What legal formalities must be followed when establishing a GmbH?

When founding a GmbH, the corporate agreement must be notarized. This step is legally required to ensure the company's structure and rules are officially recognized. Additionally, the agreement must include details such as the company's name, location, business purpose, and share capital distribution.

What is a 'Güterstandsklausel' and why is it important in a GmbH's corporate agreement?

A 'Güterstandsklausel' is a clause that addresses marital property arrangements between shareholders. It is important because it prevents complications in the event of a divorce or other marital issues, ensuring that one spouse does not have to give consent before the other can sell their business shares.

What happens to a shareholder's business interest in the event of death or divorce?

In the event of death, the shareholder's business interest can be transferred according to the terms set in the corporate agreement. In a divorce, the shares may be included in the division of assets unless the shareholder has an agreement in place, such as a 'Güterstandsklausel,' which excludes the business interests from such division.

Can shareholders freely transfer their shares in a GmbH?

Shareholders in a GmbH cannot freely transfer their shares without restrictions. The corporate agreement typically includes provisions such as a 'right of first refusal' (Vorerwerbsrecht), requiring other shareholders to have the first opportunity to purchase the shares before they are sold to third parties.

What is the 'right of first refusal' in a GmbH's corporate agreement?

The 'right of first refusal' (Vorerwerbsrecht) allows existing shareholders the first opportunity to buy shares that a shareholder intends to sell, before they are offered to an external party. This protects the company from the introduction of unwanted new shareholders.

What is the difference between a 'right of first refusal' and a 'co-sale right'?

A 'right of first refusal' gives existing shareholders the chance to purchase shares from a selling shareholder before the shares are sold to an outside party. A 'co-sale right' (Mitverkaufsrecht) allows existing shareholders to sell their shares on the same terms as the selling shareholder if the buyer is purchasing the entire company.

What is a non-compete clause in a GmbH's corporate agreement?

A non-compete clause in a GmbH's corporate agreement prevents outgoing shareholders or managers from using company knowledge or contacts to compete with the business. The clause must specify the geographical area, business activities, and time period for the restriction to be valid.

What is the 'right to buy out shares' in the event of shareholder dispute?

In cases of shareholder disputes or other specific reasons (like insolvency or breach of contract), the corporate agreement may allow the company or other shareholders to buy out the shares of the departing shareholder. This is often done without the departing shareholder's consent, but compensation (an exit payout) is provided.

What are 'approval-required transactions' (zustimmungspflichtige Geschäfte) in a GmbH?

Approval-required transactions are significant business decisions that require shareholder consent before they are executed. These can include the acquisition or sale of real estate, entering new business areas, or signing contracts above a certain value. These provisions help ensure that the shareholders retain control over major decisions affecting the company.